HAJIYA MAIMUNA ABUBAKAR v. ISAH MUHAMMED SAMA & ANOR
(2018)LCN/12129(CA)
In The Court of Appeal of Nigeria
On Friday, the 9th day of November, 2018
CA/S/155M/2017(R)
JUSTICES:
RATIO
APPEAL: WHETHER AN APPEAL WILL SUCEED
“It must be pointed out that the length of delay in filing the Notice and likelihood of success of the appeal are not immaterial in the consideration of the application. What is important is whether the delay whenever short, medium or long is satisfactorily explained See IROEGBU V OKWORDU (1990) 6 NWLR (Pt 159) 643, ISIAKA V OGUNDIMU (2006) 13 NWLR (Pt 997) 401. It is not the business or duty of the Court at this stage to consider whether the appeal will succeed or not. That is a question for the 2nd stage after hearing the appeal. What matters and should be of prime consideration is whether there are arguable grounds of appeal. See IBODO V ENAROFIA. For this reason and the detailed reasons in the lead Ruling, I also grant the application and abide the consequential order of my learned brother.” PER HUSSEIN MUKHTAR, J.C.A.
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
HAJIYA MAIMUNA ABUBAKAR – Appellant(s)
AND
1. ISAH MUHAMMED SAMA
2. MOHAMMED NURA GADA – Respondent(s)
HUSSEIN MUKHTAR, J.C.A. (Delivering the Lead Ruling):
This is an application by motion on notice praying for the following reliefs:
1. An order extending/enlarging the time within which the Applicant may appeal against the decision of the High Court of Justice, Sokoto State sitting at first instance in suit No. SS/24/2015 delivered on 14th February, 2017.
2. And for such further order or orders as this Hon. Court may deem fit to make in the circumstances.”
In other words, the application prays for extension of time within which to appeal, against the judgment of the High Court of Sokoto State delivered by Bello Duwale, J on 14 February, 2017 wherein the Court below entered judgment (exhibit A) against the applicant and in favour of the 1st respondent.
That the applicant and the 2nd respondent were the 1st and 2nd defendants respectively at the trial Court, while the 1st respondent was the plaintiff. The 2nd respondent was tenant of the applicant in house No. KSHC 63 situated at Gwiwa Low Cost Housing Estate Sokoto, Sokoto State.
That the 1st respondent filed the suit in 2015 claiming to have bought the house in dispute sometimes in 1997 and praying the Court for declaratory and injunctive reliefs against the applicant and the 2nd respondent.
The trial High Court in its judgment delivered on 14th February 2017 conferred title of the disputed land to the 1st respondent against the applicant herein. A copy of the said judgment is annexed to the supporting affidavit as exhibit A.
That immediately after becoming aware of the Judgment of the trial court, the Applicant instructed her counsel Mr. A. A Fingilla to appeal against the judgment. However, Mr. A.A. Fingilla was unable to file Notice of Appeal because he did obtain not a copy of the judgment to enable him prepare notice and grounds appeal.
Subsequently, the Applicant assigned another legal practitioner to find out the the problem with her appeal and it was discovered that the delay was from the registrar of the Court below who complain of workload.
The applicant who was bitter, replaced her former counsel with the present one to handle her appeal but it was already timed out, hence this application praying for the following reliefs;
1. An order extending/enlarging the time within which the Applicant may appeal against the decision of the High Court of Justice, Sokoto State sitting at first instance in suit No. SS/24/2015 delivered on 14th February, 2017.
2. And for such order or orders as this Hon. Court may deem fit to make in the circumstances.
The application is predicated on the following ten grounds:
1. That the applicant is the 1st defendant at the trial Court wherein judgment was entered against her.
2. That the Applicant has been in continuous possession and occupation of the house in dispute from 1998 when her predecessor in title purchased the house from Kebbi State Government to date.
3. That the judgement of the lower Court was delivered on 14th February, 2017 in favour of the 1st Respondent against the Applicant.
4. That there and then the Applicant instructed her counsel Mr. A. A. Fingilla to appeal against the judgment of the lower Court.
5. That Mr. A.A. Fingilla did not file the Notice of Appeal because he could not get a copy of the judgment on time.
6. That it took the Registrar of the lower Court about 7 months to prepare the copy of the judgment.
7. That the Applicant disengaged Mr. A.A. Fingilla counsel and employed the services of Mr. M. Nuhu to handle her appeal.
8. That by the time the Applicant finds out the facts above, she is already out of time to appeal, hence this application.
9. That the Applicant is desirous of appealing against the judgment of the trial Court.
10. That leave of this Court is required to file an appeal out of time.
The reasons for the delay in filing the Notice of Appeal as deposed to in the supporting affidavit are captured in paragraph 3 (a) to (m) of the supporting affidavit thus: –
3. That I was informed by the Applicant and Mr. M. Nuhu of counsel, in chambers on 21/10/17 at about 4.30pm of the following facts the truth of which I truly believe as follows;
a. That the Applicant and the 2nd Respondent were the 1st and 2nd defendants respectively at the trial Court, while the 1st Respondent was the plaintiff.
b. That the 2nd Respondent herein was the tenant of the Applicant herein in the house No. KSHC 63 situated at Gwiwa Low Cost Housing Estate Sokoto, Sokoto State.
c. That the Plaintiff filed his suit in 2015 claiming to have bought the house sometimes in 1997 and praying the Court for declaratory and injunctive reliefs against the Applicant and the 2nd Respondent.
d. That the Applicant traced her root of title to one Hajiya Zarah Isah who was the tenant of the house since 1981 and later bought the house from Kebbi State Government in 1998.
e. That from 1981 to date the Applicant and her predecessor in title has been in undisturbed possession of the House in dispute.
f. That trial High Court delivered his judgment on 14th February, 2017 in favour of the 1st Respondent against the Applicant herein. A copy of the Judgment is herewith annexed and marked as exhibit A.
g. That immediately after becoming aware of the Judgment of the trial Court, the Applicant instructed her counsel Mr A. A Fingiller to appeal against the judgment.
h. That Mr. A.A. Fingiller was not in Court on the day of judgment but immediately applied for the copy of the judgment to enable him prepare the notice and grounds appeal.
i. That after a while, when the Applicant could not understand why a date has not been fix for hearing of her appeal, she immediately assign her relation who is a lawyer in the Ministry of Justice, Sokoto to help her find out what is the problem.
j. That the Applicant was informed that the Registrar of the Court did not prepare the copy of the Judgment until after about 7 months blaming it on workload.
k. That the Applicant who was bitter, disengaged her counsel and engage our law firm to handle her appeal.
l. That by the time she finds out the facts above, she is already out of time to appeal, hence this application.
\m. That the delay in filing the appeal is not deliberate but for the reasons mentioned above.
The learned counsel for the applicant A. Maidawa, Esq appearing with M. K. Abdullahi, Esq raised the twin issues for determination in an application for extension of time to appeal thus:
1. Whether the applicant has shown by affidavit evidence good and substantial reasons for their failure to appeal within the prescribed time, and
2. Whether there are good grounds of appeal which prima facie shows good cause why the appeal should be heard?
The issues were argued together. The application prays for extension of time within which the applicant may appeal against the decision of the High Court of Sokoto State in suit No. SS/24/2015 delivered on 14th February 2017 as contained in the motion paper. It is supported by an affidavit of 8 paragraphs deposed to by one Zayyanu Sahabi a litigation clerk in the chambers of the applicants counsel. To the application was also annexed exhibits A and B.
It was submitted for the applicant that the averments in the supporting affidavit, have supplied sufficient reasons to entitle the applicant to the exercise of Courts discretion in his favour.
This Court has the power to grant an application for extension to appeal subject to fulfilment of the twin condition imposed under Order 6 Rule 9(2) of the Court of Appeal Rules 2016, which provides as follows:
“Every Application for enlargement of time within which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period and by grounds of appeal which prima facie show good cause why the appeal should be heard … ” (underline for emphasis)
The foregoing provision clearly shows that the following two
7
preconditions must be satisfied for an application of this nature to succeed. These are:
a) Good and substantial reasons for the delay and
b) A Notice of Appeal which prima facie show cause why the appeal should be heard.
The learned counsel for the applicant specifically referred to paragraph 3(a) (m) of the supporting affidavit with emphasis on and more specifically paragraphs 3(g), (h), (i), and (k), of the affidavit, which set forth good and substantial reasons for the delay in filing the Notice of Appeal. The said germane depositions are reproduced thus:
4. That I was informed by the Applicant and Mr. M. Nuhu of counsel, in chambers on 21/10/17 at about 4.30pm of the following facts the truth of which I truly believe as follows;
a. That the Applicant and the 2nd Respondent were the 1st and 2nd defendants respectively at the trial Court, while the 1st Respondent was the plaintiff.
b. That the 2nd Respondent herein was the tenant of the Applicant herein in the house No. KSHC 63 situated at Gwiwa Low Cost Housing Estate Sokoto, Sokoto State.
c. That the Plaintiff filed his suit, in 2015 claiming to have bought the house sometimes in 1997 and praying the Court for declaratory and injunctive reliefs against the Applicant and the 2nd Respondent.
d. That the Applicant traced her root of title to one Hajiya Zarah Isah who was the tenant of the house since 1981 and later bought the house from Kebbi State Government in 1998.
e. That from 1981 to date the Applicant and her predecessor in title has been in undisturbed possession of the House in dispute.
f. That trial High Court delivered his judgment on 14th February, 2017 in favour of the 1st Respondent against the Applicant herein. A copy of the Judgment is herewith annexed and marked as exhibit A.
g. That immediately after becoming aware of the Judgment of the trial Court, the Applicant instructed her counsel Mr. A. A Fingilla to appeal against the judgment.
h. That Mr. A.A. Fingilla was not in Court on the day of judgment but immediately applied for the copy of the judgment to enable him prepare the notice and grounds appeal.
i. That after a while, when the Applicant could not understand why a date has not been fixed for hearing of her appeal, she immediately assigned her relation who is a lawyer in the Ministry of Justice, Sokoto to help her find out what is the problem.
j. That the Applicant was informed that the Registrar of the Court did not prepare the copy of the Judgment until after about 7 months blaming it on workload.
k. That the Applicant who was bitter, disengaged her counsel and engage our law firm to handle her appeal.
l. That by the time she finds out the facts above, she is already out of time to appeal, hence this application.
It was argued that the applicants uncontroverted depositions have established the following salient points on preponderance of evidence:
(1) That immediately the applicant became aware of the judgment of the lower Court, she instructed her counsel Mr A.A. Fingilla to appeal the judgment.
(2) That her counsel Mr. A.A Fingilla did not appeal the judgment after several months.
(3) That the Applicant after waiting for a while the Applicant instructed her relation who is a lawyer to help find out the status of her appeal, that it was then the applicant learnt that her counsel did not file any appeal.
(4) That immediately the applicant found out the facts above, she was bitter and disengaged her counsel and she filed this application.
It was argued for the applicant that the respondent has not controverted the foregoing applicant’s depositions by paragraphs 3(a) to (l) of his counter affidavit.
It was further argued for the applicant that the deposed facts have shown that the delay was the fault of the former applicant’s counsel who failed to file the Notice of Appeal within time. It took the intervention of a concerned relation to the applicant to find out the status of her case.
It was submitted for the applicant that the Courts in a plethora of cases have held that a litigant should not be made to suffer for the mistake of counsel. He referred to the case of THE HON. MINISTER OF THE FEDERAL CAPITAL TERRITORY V. ABDULLAHI (2010) ALL FWLR (Pt.507) 179 at 195 – 196 and the case of OSALUMHENSE v. AGBORO [2005] 16 NWLR (PT. 951) 204.
It was also submitted on the second condition, that the Applicant has annexed the proposed Notice of Appeal to her supporting affidavit (exhibit B), which contain grounds showing cause why the appeal should be heard as required by law.
Specific reference was made to ground 3, which shows that the suit is statute barred and eventually incompetent. See ONASHILE V IDOWU (1961) SCNLR 16; UKWU V. BUNGE (1997) 8 NWLR (Pt.518) 527. The Court was urged to grant the application as prayed.
The learned counsel for the respondent relied on the counter affidavit especially paragraph 3 thereof to counter the applicants germane depositions in paragraph 3 of the supporting affidavit. It is reproduced thus: –
That on the 13th of April 2017, at the Chambers, at about 4.50pm in the course of my work, Ibrahim Abdullahi Esq (of counsel) informed me of the following facts, the truth of which I verily believed to be true as follows:
a. That he has gone through the contents of the supporting affidavit of the applicant’s application and found some depositions made in the supporting affidavit of the applicant therein to be most untrue.
b. That contrary to paragraphs 3b – e of the supporting affidavit of the applicant, the applicant is a trespasser to the property as the 1st Respondent and had been occupying same without the consent and knowledge of him (the 1st Respondent).
c. That further to the above, his (1st Respondent’s) reliefs in the action before the Court below relates to continuous trespass to show the wrongful occupation of his property and each passing day constituted a new cause of action in favour of the 1st Respondent for continuous trespass.
d. That contrary to paragraphs 3g – 3i of the supporting affidavit of the Applicant, the Applicant was represented in Court by one Aminu Saidu who held the brief of A. A. Fingilla Esq when judgment was delivered and by extension, both Counsel to the Applicant and the Applicant herself are deemed to be aware of the said judgment but sat docile and could not even file an omnibus ground of appeal to challenge the judgment of the Court below.
e. That contrary to paragraphs 3j of the supporting affidavit of the Applicant, none receipt of a copy of the judgment of the Court below is not a good ground for not filing an omnibus ground of appeal which has nothing to do with seeing a copy of the judgment of the Court below.
f. That further to the above, there is nothing shown by the Applicant of her seriousness to have a copy of the judgment of the Court below.
g. That contrary to paragraphs 3 a -k of the supporting affidavit of the Applicant, the Applicant has been most undesirous of prosecuting his appeal to its logical conclusion.
h. That contrary to paragraphs 3 (i) (m), of the supporting affidavit of the applicant, the proposed ground of appeal does not contain any recondite issues of law to be canvassed on appeal.
The learned counsel for the respondent relied on the foregoing depositions in arguing that the appellant has not fulfilled the statutory preconditions for appealing out time.
Having lost the right to appeal, the Appellant/Applicant may only appeal if this Court exercises its discretion in his favour by extending time within which to appeal. Order 6 Rule 9(2) guides the Court on exercising its discretion to extend time within can appeal. It was argued that the Applicant has not shown good and substantial reasons for failing to appeal within the statutory time frame and has also not arguable grounds of appeal which prima facie show good cause why the appeal should be heard. The Court was urged to refuse and dismiss the application.
The grant of an application of this nature under Order 6 Rule 9(2) of the Court of Appeal Rules, 2016, is at the discretion of the Court, and like any exercise of discretion, it has to be exercised judicially and judiciously.
In the exercises of its discretion under the Rules, the Court must always consider the depositions in the supporting affidavit vis a vis the counter affidavit filed by the respondent to see if the reasons therein are good and substantial enough to warrant the exercise of the Courts discretion in favour of the applicant or otherwise. See the cases of TOTAL INT. LTD VS AWOGBORO (1994) 4 NWLR (PT.337) 147 and NWORA VS NWABUEZE (2011) SCMJ 1163.
It is pertinent, in an application of this nature, that the length of delay is immaterial so far as a good and substantial reasons justifying the delay is proffered. On the other hand, the duration of delay no matter how short, is material if no good and substantial reason is given to justify it. See the case of YESUFU V COOPERATIVE BANK (1989) NWLR (PT. 110) 483.
The Applicant herein, in an attempt to satisfy the twin mandatory conditions has deposed to the fact that the delay was caused by the failure of his counsel to carry out his instructions to file the notice of appeal soon after the judgment was delivered by the lower Court.
A relation of the appellant had to intervene by going to the Court to find out the position of the appeal only to discover that the appeal had not been ignited as no notice of appeal was filed by the applicants erstwhile counsel A. A. Fingilla, Esq. Thus, the delay was substantially, if not wholly, due to fault of his counsel. This deposition, which has not been denied in the counter affidavit, to my mind, constitutes sufficient good and substantial reason for failure to appeal within the prescribed period as to satisfy the first condition envisaged under Order 6 Rule 9(2) of the Rules.
The law is well settled that mistake of counsel must not be visited on a litigant. See the case of HON. MINISTER OF THE FEDERAL CAPITAL TERRITORY V. ABDULLAHI (2010) ALL FWLR (Pt.507) 179 at 195 196 where the Supreme Court stated thus: –
“The law is definitely settled that no litigant should be punished for sin or mistake, of counsel.” It was similarly held in the case of OSALUMHENSE v. AGBORO [2005] 16 NWLR (PT. 951) 204 thus:
“It is a principle of law that litigants should not be made to suffer for the fault of counsel.”
The delay in filing the notice of appeal, in the instant case, was due to fault of counsel and the applicant must not be made to suffer the fault of his counsel.
The third ground in the proposed Notice of Appeal is reproduced thus:
GROUND 3
The Court below fell into very grave error of law when it entertained the 1st respondent’s claim in suit number SS/24/2015 without jurisdiction.
Particulars:
1) That the issue between the 1st respondent and the Appellant is purely of competing interest over land.
2) That the 1st respondent claimed to have bought the House sometimes in 1997 but only file suit No. SS/24/2015 in 2015 about 18 years.
3) That by the provisions of Section 3 of the Limitation Law Cap. 80 Laws of Sokoto 5tate, 1996, the 1st respondent’s claim is statute barred.
4) That the Court below lacks the jurisdiction to hear the 1st respondent’s claim in suit No. SS/24/2015 which is statute barred.
The foregoing ground 3 in the Notice of Appeal raises a critical arguable issue predicated upon jurisdiction of the court below. A ground of appeal alleging that the suit is statute barred and eventually incompetent is serious enough to show a compelling reason for hearing the appeal. Such ground of appeal is not frivolous as to shut out the applicant without hearing him on the merits. The Supreme Court in the case of ONASHILE V IDOWU (1961) SCNLR 16 observed as follows: –
“Where there are one or two points of law and statutory interpretations in the grounds of appeal, the grounds of appeal are not frivolous and to shut the appellant out without hearing him on the merits on the ground that it was too late in carrying out the conditions laid down, would be too drastic a penalty.
Similarly, in the case of UKWU V. BUNGE (1997) 8 NWLR (Pt.518) 527 the apex Court held per Belgore, JSC (as he then was) thus: –
“Where a party prays for extension of time to appeal and the ground is based on issue of jurisdiction and it is prima facie a strong issue in consideration of the whole proceedings, the Court will readily accede to the prayer as jurisdiction is always a good and substantial reason why an appeal should be heard.”
I cannot agree more. Being of the view that the applicant has satisfied the twin conditions stipulated in Order 6 Rules 9(2) of the Rules, this application succeeds. Accordingly, the applicant is granted an extension of 14 days from today to file Notice of Appeal against the judgment the High Court of Justice, Sokoto State in suit No SS/24/2015 delivered on 14th February 2017. There shall be no order as to costs.
AMINA AUDI WAMBAI, J.C.A.: I have read the ruling of my learned brother, Hussein Mukhtar, JCA, with whom I am in agreement that this application for enlargement of time to appeal the decision of the lower Court delivered on the 14/2/2017, out of time, is meritorious. The unchallenged depositions at paragraphs 3(g) (6) of the affidavit accounting for the delay in filing the notice of appeal timeously and the claim that the Respondent’s action is statute barred, have sufficiently met the twin conditions stipulated in Order 6 Rule 9 (2) of the Rules of this 2016, to warrant the grant of the application. Where an applicant, has satisfactorily shown good and substantial reasons for failing to appeal within the prescribed period and his grounds of appeal, prima facie are not frivolous but sufficiently shows why the appeal should be heard such as where the issue of jurisdiction or the action being statute barred is raised, an appellate Court would not, ordinarily decline to grant the application.
It must be pointed out that the length of delay in filing the Notice and likelihood of success of the appeal are not immaterial in the consideration of the application. What is important is whether the delay whenever short, medium or long is satisfactorily explained See IROEGBU V OKWORDU (1990) 6 NWLR (Pt 159) 643, ISIAKA V OGUNDIMU (2006) 13 NWLR (Pt 997) 401. It is not the business or duty of the Court at this stage to consider whether the appeal will succeed or not. That is a question for the 2nd stage after hearing the appeal. What matters and should be of prime consideration is whether there are arguable grounds of appeal. See IBODO V ENAROFIA. For this reason and the detailed reasons in the lead Ruling, I also grant the application and abide the consequential order of my learned brother.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I have had the preview of the Ruling just delivered by my learned brother, Justice Hussein Mukhtar (JCA). I agree entirely that the application for extension of time to allow the Applicant to Appeal out of time against the decision of the High Court of Justice, Sokoto State sitting at first instance in Suit No. SS/24/2015 delivered on 14/2/2017 should be allowed and is hereby allowed. The Applicant is hereby granted extension of 14 days from today to file his Notice of Appeal. I abide with the order as to cost.
Appearances:
A. Maidawa, Esq. with him, M.K Abdullahi, Esq. For Appellant(s)
Shamsu A. Dauda, Esq. for the 1st respondent.
The 2nd Respondent was served on 20/09/2018 For Respondent(s)
